In Australia, the National Disability Insurance Scheme (NDIS) has transformed the way people with disabilities access support and services. It is important that separated parents understand how parenting orders should take into consideration children with additional needs and NDIS plans.
What are Parenting Orders?
A parenting order is a legally binding agreement made by the Federal Circuit and Family Court of Australia (“the Court”) regarding the care, welfare, and development of a child. These orders typically cover matters such as where the child lives, how much time they spend with each parent, decision making and other aspects concerning the child’s upbringing. Parenting orders can be agreed between the parents and made by consent or made by the Court following a contested hearing.
When a child with a disability is involved, parenting orders should also include detailed arrangements about the provision of medical care, therapy appointments, special education needs and access to disability supports. As such, parenting orders can have significant implications for how an NDIS plan is managed and utilised.
The NDIS and its role for Children
The NDIS provides individualised support to people with a recognised disability or as an early intervention measure. For eligible children, it provides financial assistance to fund therapies, purchase assistive equipment and technology, support workers and various interventions designed to enhance the participant’s quality of life and developmental outcomes. A child’s NDIS plan is based on their personal goals and needs, often requiring collaboration between the child’s family members, educators and medical practitioners/therapists to implement and review it effectively.
Where families are intact, decisions around the use of NDIS funding are generally made jointly by the child’s parents or legal guardians. However, in separated families, disagreements about the application of NDIS supports can arise, particularly if there is no clear agreement or parenting order that sets out who holds decision-making authority.
How Parenting Orders Interact with NDIS Plans
A key role for parents or guardians of children who have an NDIS plan is a Child Representative. The Child Representative will decide how the plan is managed, arrange plan reviews, choose providers and act in the child’s best interests.
Parenting orders can directly influence how a child’s NDIS plan is administered. In particular, they can determine:
- Who holds decision-making authority over the child’s supports.
- Who is the child’s primary carer for the purposes of the NDIS.
- Where and how supports are delivered, including therapy schedules and specialist appointments.
Where there are no orders displacing parental or decision-making responsibility, the NDIS will typically recognise both parents as Child Representatives. However, if parents are not able to get along, the NDIS may decide that only one parent is the Child Representative.
Even if you do not have parental responsibility, there are some circumstances when you can still be recognised by the NDIS as a Child Representative.
Common Disputes
When parents cannot agree on the management of their child’s NDIS plan, disputes can quickly escalate. Common disputes that can arise include:
- Disagreements over the choice of service providers.
- Conflicts about the type or extent of supports.
- Issues around transporting the child to appointments.
- Financial disagreements, particularly if additional costs arise that are not fully covered by the NDIS.
To avoid disputes or further intervention by the Court in the future, it is important that there are orders which deal with all issues that may arise in relation to a child’s treatment.
Practical tips
If you have a child who has or may need involvement of the NDIS, we recommend that you take proactive steps when negotiating your parenting orders. Some things to consider might include:
- How decisions about disability supports will be made.
- Whether one parent should be solely responsible for liaising with the NDIS and service providers.
- Communication between parents about the child’s plan and reviews.
- Provision for therapies or supports to be maintained.
- Mechanisms for agreement of service providers and any changes.
The Court’s primary concern is always what is in the best interests of the child.
At Gillard Family Lawyers we have assisted many clients to navigate the interaction between the NDIS and parenting arrangements.
Written by
Ashlea Taylor
Senior Associate
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